This last day of January 2019 dealt another setback--technically, a set of setbacks--to Qualcomm as half of its patent infringement lawsuits against Apple's Spotlight search in Munich have been tossed and the other half is going down the tubes. On the legal front, this month as a whole has gone, for the most part, as if Qualcomm had set out to prove Murphy's law. A summary will be provided further below.
The Munich I Regional Court thankfully published a press release on its website (in German) regarding the decisions the 7th Civil Chamber under Presiding Judge Dr. Matthias Zigann announced today in Qualcomm's eight Spotlight cases.
It was already clear before today's announcement that some of those lawsuits were bound to be dismissed because there was no doubt at the hearing that a claim limitation (a "standby" feature for apps) wasn't practiced. I reported that fact after the trial and mentioned it again in my most recent post relating to this set of cases, which I wrote after the European Patent Office sided, in a preliminary opinion, with Apple and Intel (I should even say Intel and Apple because Intel was first to challenge those patents), represented by the patent attorneys of the Samson & Partner firm (which consistently delivers great work, and was on the winning side in another case today--involving totally different parties--as I'll mention at the end of this post).
These are eight cases because there are two cases for each of the four patents, always one against Apple Inc.--the U.S. HQ--and one against two European Apple entities. The older ones of the four patents-in-suit (too old to be challenged before the European Patent Office post-grant, but they are being challenged in the Federal Patent Court of Germany), EP1956806 and EP1955529, are not infringed--for the aforementioned reason (no "standby"). That disposes of four of the eight cases. Qualcomm can appeal, but the "standby" question appears to be an insurmountable hurdle for Qualcomm, and the EPO opinion on the other two patents, while neither final nor binding on the Federal Patent Court of Germany, strongly suggests that the entire patent family is doomed to be invalidated.
Non-infringement was successfully argued for Apple by Freshfields Bruckhaus Deringer's Prince Wolrad of Waldeck and Pyrmont.
Instead of outright ordering a stay of the other four cases (over the two younger patents the EPO deems invalid on a preliminary basis), the court made the procedural decision to give Qualcomm a chance---by way of a reopening of the proceedings--to respond to the EPO's preliminary findings of invalidity. That's because the EPO opinion came in so shortly (just about a week) before today's ruling date in the infringement cases.
Obviously the cases will be decided by the court, not by a blog, but I really view those four cases as "zombie cases": a quartet of dead men walking. No matter what Qualcomm will say (and Quinn Emanuel's Dr. Marcus Grosch won't leave a stone unturned; after all, he even salvaged a narrowed version of Motorola's infamous push notification patent by creatively crafting a cascade of amended claims), the EPO's preliminary position on revocation will bear enormous weight with the court unless a very clear legal error were to be identified. That's because the courts of law hearing infringement cases in Germany recognize that the EPO (which also applies to the Federal Patent Court of Germany) not only spends a lot of time evaluating validity challenges but also has technical expertise on board.
Also, the EPO's opposition hearings will take place later this year, so if the Munich I Regional Court allowed enforcement (which wouldn't matter because iOS 12 contains a workaround) but the EPO issued a final (though appealable) revocation decision later, it wouldn't look good, while the EPO's preliminary opinion justifies a stay of those four cases (short of a silver bullet on Qualcomm's part), and should the EPO change mind, Qualcomm wouldn't have lost much time for enforcement.
Getting back to the reference to Murphy's law further above, this is a summary of legal developments for Qualcomm during this month (it may read as if this had been authored by those shortsellers, but it's simply the way it is:
The FTC v. Qualcomm antitrust trial in San Jose (Northern District of California) obviously towers above all other events. Closing arguments are rarely a surprise. The FTC's case was validated by testimony from the industry at large (American companies, companies from ally nations, and others). Qualcomm only had 2.5 companies on its side--Nokia (a failure in the handset business), Ericsson (another handset failure, and they just count as 0.5 here because they attacked the value of Qualcomm's patents and its practices, siding with Qualcomm only on the question of chipset-level licensing), and InterDigiTroll.
Qualcomm's lead counsel delivered a very strong performance on Tuesday, but Judge Koh was looking almost exclusively at her documents, the real-time transcript, and her notes, so all the rhetoric and gestures bounced off of her like a tennis ball thrown incessantly at a stone wall.
On January 15, the Mannheim Regional Court threw out a Qualcomm suit because it held that the iPhone doesn't infringe under a proper claim construction.
Starting that same day (January 15), the Patent Trial and Appeal Board (PTAB) of the United States Patent & Trademark Office (USPTO) initiated inter partes reviews of 21 (twenty-one!) Qualcomm patents challenged by Apple. Such reviews are initiated only if a reasonably serious issue is raised.
Then came the EPO opinion on two patents and, a week later, the related Munich decisions discussed above.
All that bad news is not counterbalanced by the symbolical victory that is a preliminary injunction in Germany, barring Apple from saying that the iPhone 7 and 8, against which Qualcomm secured a pair of injunctions in December (with the court ordering remedies while being agnostic as to the merits), remains available at more than 4,000 points of sale. But whether or not Apple is allowed to say it, there really doesn't appear to be an availability problem. On the Internet, those devices are just one Google search away from Apple's German online shop, and in the real world, I doubt there's any Apple Store from which people couldn't find the next point of sale (where those devices continue to be sold) in walking distance--in many cases, it will be like just crossing a street.
Headed for an antitrust defeat and failing to gain leverage from patent infringement actions against Apple and Intel, Qualcomm is trying to influence its fate out of court.
In other news, totally unrelated to Qualcomm, the Munich I Regional Court today rejected a complaint by Netlist against HP and SK hynix because it found no infringement. That case involves a standard-essential utility model, which is why I got interested in it. In my trial report I had already expressed my view that a rejection or stay appeared more likely than a victory for Netlist. I've already told some Qualcomm-aligned Twitter trolls that, in other words, my highest priority is to have a strong prediction record.
The utility model case was won by a Bardehle team led by Professor Peter Chrozciel and Dr. Anna Giedke as well as patent attorneys Dr. Georg Jacoby and Dr. Robert Baier from the Samson firm (mentioned further above for its accomplishments before the EPO against Qualcomm's Spotlight patents). In the United States, SK hynix is represented by Sidley Austin against Netlist. Sidley and Professor Chrocziel (at the time, with Freshfields) already worked together very successfully when representing Microsoft in the United States and Germany.
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